Probate Code
Each state’s laws set out detailed procedures which must be followed to have a guardian or conservator appointed. Although details vary, typically the process requires notice to the proposed ward and other interested parties, evaluation of the proposed ward and evidence supporting the request, a hearing, and a decision by a jury or judge.
Initiating an Action – Filing a Petition:
A person seeking a finding of incapacity, appointment of a guardian, or both, must file a summons and petition. When more than one petition is pending in the same court, the proceedings may be consolidated. Only the Probate Court can appoint a guardian for an adult. The Probate Court will not appoint a guardian unless it receives clear and convincing evidence, in a court hearing, that an individual is incapacitated, and that the person applying to be a guardian is the appropriate person to serve as a guardian.
Notice of Hearing:
As soon as reasonably possible after the filing of the summons and petition, the petitioner shall serve a copy of the summons, petition, and a notice of right to counsel upon the alleged incapacitated individual; a copy of the summons and petition upon all correspondence and the petitioner in any pending guardianship proceeding; and any affidavits or physician’s or nurse practitioner’s reports or, at the discretion of the court, the report of a physician assistant or psychologist filed with the petition. If service is not accomplished within 120 days after the filing of the action, the court may dismiss the action without prejudice. The notice of right to counsel shall advise the alleged incapacitated individual of the right to counsel of his choice and shall state that if the court has not received notice of appearance by counsel selected by the alleged incapacitated individual within fifteen days from the filing of a proof of service, the court will appoint counsel. In appointing counsel, the court shall consider the expressed preferences of the alleged incapacitated individual.
Examinations, Evaluations, and Interviews:
Each examiner shall complete a notarized report setting forth an evaluation of the condition of the alleged incapacitated individual. The original report must be filed with the court by the court’s deadline, but not less than forty-eight hours prior to any hearing in which the report is introduced as evidence. For good cause, the court may admit an examiner’s report filed less than forty-eight hours prior to the hearing. All parties are entitled to review the reports after filing, which must be admissible as evidence.
As soon as the interests of justice may allow, but after the time for filing a response to the petition has elapsed as to all parties, the court shall hold a hearing on the merits of the petition. The alleged incapacitated individual, all parties, and any person who has filed a demand for notice shall be given notice of the hearing. The alleged incapacitated individual is entitled to be present at the hearing, to conduct discovery, and to review all evidence bearing upon his condition. The hearing may be closed at the request of the alleged incapacitated individual or his guardian ad litem.
The alleged incapacitated individual may waive notice of a hearing and his presence at the hearing. If there is an agreement among all the parties and the guardian ad litem’s report indicates that a hearing would not further the interests of justice, the alleged incapacitated individual may waive his right to a hearing. If the alleged incapacitated individual waives his right to a hearing, the court may:
(1) require a formal hearing;
(2) require an informal proceeding as the court shall direct; or
(3) proceed without a hearing.
If no formal hearing is held, the court shall issue a temporary consent order, which shall expire in thirty days. A ward, under a temporary order, may request a formal hearing at any time during the thirty-day period. At the end of the thirty-day period, if the ward has not requested a formal hearing, the court shall issue a final order upon such terms agreed to by the parties and the guardian ad litem.
Adjudication and Disposition:
The court shall exercise its authority to encourage maximum self-reliance and independence of the incapacitated individual and issue orders only to the extent necessitated by the incapacity of the individual. The court may appoint a guardian if clear and convincing evidence shows that the individual is incapacitated and the appointment of a guardian is necessary to provide continuing care and supervision of the incapacitated individual. The court may appoint co-guardians if the appointment is in the best interest of the incapacitated individual.